Foundation Weighs in on Mandatory Student Activity Fees

In Schain v. Schmidt, Atlantic Legal filed an amicus brief in support of a petition for certiorari, in a case in which students at Brooklyn College, part of the City University of New York, are challenging the adequacy of CUNYs regulations which are supposed to protect dissenting students from being compelled to fund political or ideological speech with which they disagree. At Brooklyn College, the New York Public Interest Research Group is funded by a special referendum on whether a fee of $5.00 per semester is to be added to the student activity fee portion of the tuition bill of every student. The Foundation filed its brief in support of the student-petitioners because of its abiding interest in the issue of compelled speech on campus, and to preserve the First Amendment protections the Foundation secured in Galda v. Bloustein, 686 F.2d 159 (3d Cir. 1982), Galda v. Rutgers, 772 F.2d 1060 (3d Cir. 1985), and Carroll v. Blinken, 957 F.2d 991 (2d Cir. 1992) .

CUNYs regulations provide for a refund procedure, but that procedure is both limited (a student who wishes a refund may submit a written request during a particular 2-week period which is not clearly delineated) and obscure (the right to a refund is stated on one page, and the description of the procedure for obtaining the refund is described on a different page not in proximity to the page stating that a refund can be had in the 400-page Academic Bulletin.). Moreover, the refund is mailed by NYPIRG weeks or months after the student activity fee is paid by the student and paid over by CUNY to NYPIRG, resulting in an interest-free loan by the dissenting student to NYPIRG.

The United States District Court for the Southern District of New York dismissed the students claims on summary judgment largely because, in the trial judges view, the amount of interest the students would have earned on the NYPIRG portion of the student activity fee each semester was de minimis. The Second Circuit affirmed.

The Supreme Court has held that public universities may impose student activity fees when their method of allocation either is viewpoint neutral or, if the method of allocation is not viewpoint neutral, the university institutes an optional or refund system that is adequate. Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217 (2000). We further argue that the refund system at CUNY is not carefully tailored to minimize the infringement, is an involuntary loan for expressive activities to which the student objects, poses the risk that dissenters funds may be used [even] temporarily for an improper purpose, and is not constitutionally adequate in light of a body of First Amendment teaching on compelled speech in cases dealing with mandatory union and bar association dues (particularly Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986)). We also argue that a negative check-off system adopted by Rutgers, the State University of New Jersey as a result of our success in the Galda cases is both more effective in protecting students free speech rights and more efficiently administered than the CUNY system. We contend that the district courts de minimis theory was incorrect because even if each individual students lost interest is minimal, the cumulative amount of the NYPIRG fee amounts to hundreds of thousands of dollars a year at CUNY and the interest on that sum is not a trifle (the district courts word) and is a substantial involuntary gift.